Creating a living will, also known as an advance directive or personal directive in some provinces, is one of the most important steps you can take to ensure your healthcare wishes are respected if you become unable to communicate them. This comprehensive guide will walk you through the process of creating a legally valid living will in Canada, with specific information for each province and territory.
What Is a Living Will and Why Do You Need One?
A living will is a legal document that outlines your wishes for future medical care if you become incapacitated and unable to make or communicate healthcare decisions. This document can prevent family disputes, reduce the burden on loved ones, and ensure your healthcare preferences are followed.
Unlike a last will and testament that deals with property distribution after death, a living will focuses on medical decisions while you're alive but unable to communicate. It typically covers scenarios such as:
- Life-sustaining treatments
- Pain management preferences
- Organ and tissue donation
- Artificial nutrition and hydration
- Comfort care options
Provincial and Territorial Requirements
Each province and territory in Canada has specific requirements for creating a valid living will. Here's a detailed breakdown:
Ontario
In Ontario, a living will is part of what's called a Power of Attorney for Personal Care (POAPC). Key requirements include:
- Must be in writing
- Must be signed by you and two witnesses
- Witnesses cannot be your spouse, partner, child, person you are appointing, or their spouse
- You must be 16 years or older and mentally capable when creating the document
- Can be revoked or changed at any time while mentally capable
British Columbia
British Columbia uses the term "Advance Directive" and has specific requirements:
- Must be in writing
- Must be signed and dated by you in the presence of two witnesses
- Witnesses must be 19 years or older
- Cannot be someone providing personal or health care services for compensation
- Must include specific statements required by the Health Care Consent and Care Facility Admission Act
Alberta
Alberta refers to living wills as "Personal Directives" with the following requirements:
- Must be in writing
- Must be dated and signed by you
- Must be signed by one witness
- The witness cannot be your agent or their spouse
- Must name one or more agents to make decisions
- Must be 18 years or older when creating the document
Quebec
Quebec's advance medical directives have unique requirements:
- Must use the mandatory form provided by the Régie de l'assurance maladie du Québec
- Must be signed before two witnesses
- Can be registered with the Advance Medical Directives Register
- Must be made by a capable person of full age
- Can only be modified through completing a new form
Manitoba
Manitoba's Health Care Directive requirements include:
- Must be in writing
- Must be signed and dated by you
- Requires one witness
- No specific form required, but must meet the requirements of the Health Care Directives Act
- Must be made voluntarily by a person with capacity
Saskatchewan
In Saskatchewan, living wills are called "Health Care Directives":
- Must be in writing
- Must be signed and dated
- Requires one witness
- Witness cannot be the proxy or their spouse
- Must be 16 years or older
- Can use any format that meets legal requirements
Nova Scotia
Nova Scotia's Personal Directives requirements:
- Must be in writing
- Must be signed and dated by you
- Requires one witness
- Cannot be someone you've appointed as a delegate
- Must be 19 years or older
- Must name a delegate for healthcare decisions
New Brunswick
New Brunswick calls these documents "Advance Health Care Directives":
- Must be in writing
- Must be signed and dated
- Requires two witnesses
- Witnesses cannot be your proxy or their spouse
- Must be 16 years or older
- Should name a proxy for healthcare decisions
Newfoundland and Labrador
Requirements for Advance Health Care Directives:
- Must be in writing
- Must be signed and dated
- Requires two witnesses
- Cannot be your substitute decision maker or their spouse
- Must be 16 years or older
- Should appoint a substitute decision maker
Prince Edward Island
PEI's Health Care Directive requirements:
- Must be in writing
- Must be signed and dated
- Requires one witness
- Cannot be your proxy or their spouse
- Must be 16 years or older
- Should name a proxy for healthcare decisions
Northwest Territories, Yukon, and Nunavut
These territories have similar requirements:
- Must be in writing
- Must be signed and dated
- Requires two witnesses (one in Yukon)
- Must be 19 years or older (16 in Yukon)
- Should name a substitute decision maker
Steps to Create Your Living Will
Determine Your Province's Requirements
Review the specific requirements for your province or territory as outlined above. Consider consulting with a legal professional to ensure compliance.
Consider Your Healthcare Wishes
Think carefully about your preferences for various medical scenarios. Consider consulting with healthcare providers to understand the implications of different choices.
Choose Your Decision Maker
Select someone trustworthy to make healthcare decisions on your behalf. Discuss your wishes with them in detail and ensure they're willing to take on this responsibility.
Complete the Documentation
Either use your province's official form or create a document that meets all legal requirements. Include clear, specific instructions about your healthcare preferences.
Sign and Witness
Follow your province's witnessing requirements carefully. Invalid witnessing can make your living will legally unenforceable.
Store and Distribute
Keep the original in a safe but accessible place. Provide copies to your healthcare proxy, family members, and healthcare providers.
Common Mistakes to Avoid
- Using vague or unclear language
- Failing to meet provincial witnessing requirements
- Not updating the document when circumstances change
- Not informing key people about the document's existence and location
- Making contradictory statements about medical preferences
Reviewing and Updating Your Living Will
Healthcare preferences and circumstances can change over time. Consider reviewing your living will:
- After any major health changes
- When medical technology advances affect your choices
- Every 3-5 years to ensure it still reflects your wishes
- When moving to a different province
- After significant family changes
Seeking Professional Help
While it's possible to create a living will without legal assistance, consulting with these professionals can be beneficial:
- Healthcare providers to understand medical options
- Legal professionals familiar with provincial requirements
- Financial advisors for related estate planning
- Social workers or counselors for emotional support
Key Takeaways
Creating a valid living will requires careful attention to provincial requirements and thoughtful consideration of your healthcare preferences. Take time to discuss your choices with family members and healthcare providers, and ensure your document is properly witnessed and stored. Regular reviews and updates will help ensure your wishes are respected when they matter most.
Remember that while this guide provides general information, consulting with legal and healthcare professionals in your province can help ensure your living will fully protects your interests and meets all legal requirements.
Disclaimer: This article provides general information about living wills in Canada and should not be considered legal advice. Laws and requirements may change over time. Consult with a legal professional in your province for specific guidance.
